The sale of nicotine vapes and e-cigarettes without a prescription has been illegal in Western Australia for several years, but not a single retailer has been fined in the past 12 months.
It comes despite more than 24,000 illegal vapes being seized during that period and the Health Department writing to 3,000 retailers in August last year to place them "on notice".
In WA, the maximum penalty for selling nicotine vapes under the Medicines and Poisons Act 2014 is $45,000.
But disposable nicotine vapes can be easily purchased online and from many convenience stores, delis, smoke shops, and tobacconists in Perth's CBD, its suburbs and in regional WA.
In some stores, the illegal trade is more covert and under-the-counter, even using brown paper bags.
But other retailers, especially in Perth's CBD, more brazenly advertise their range of illegal vapes by using pictures of their colourful packaging and listing their fruity flavours.
On some streets, it is common to see queues of people in stores waiting to purchase disposable nicotine vapes for between $25 and $40. Often those queues are also populated by children.
The federal government this week unveiled plans to ban disposable nicotine vapes nationwide and dramatically restrict the sale of other nicotine vapes.
Inaction comes despite 2022 warning to retailers
More than nine months ago, the WA health minister and WA's chief pharmacist held a media conference where some of more than 15,000 vapes seized from 32 retailers were put on display.
"The message is clear, that selling vapes is illegal, no matter how you do it, unless you are doing it as a pharmacist with a prescription," Health Minister Amber-Jade Sanderson said at the time.
"These have never been legal in Western Australia," Chief Pharmacist Meeghan Clay said.
During that announcement, it was confirmed a number of retailers were "repeat offenders" and it was promised compliance activities would be "ramped up".
In the past six months, compliance officers from the Department of Health have inspected almost 2,000 premises for tobacco and vapes and formal warnings were issued to about 50 retailers.
Where vapes were located, they were seized and destroyed but no retailers have been fined.
"The relevant legislation does not provide for fines in these cases, but where retailers are repeatedly found with vapes, prosecution is a possible penalty," a Health Department spokesperson said this week.
"The department is considering legal action against a number of more serious offenders but cannot make any comment on matters that are in progress."
Government not responsible for fines, says Premier
When asked why no fines had been handed out, Premier Mark McGowan said those decisions were made independent of government.
But both he and Health Minister Amber-Jade Sanderson congratulated the health department for seizing 24,000 vapes over the last year.
"That is a huge impost on those businesses who've had those vapes seized and a huge cost," Ms Sanderson said.
"WA has the most rigorous and toughest vaping regulations, but the real gains are made in the federal sphere."
"I feel for parents, it is really challenging, and that is why every health minister in every jurisdiction supports the federal government's plain packaging ban on imports for personal as well as commercial uses.
"In fact, I have been calling for this, certainty behind the scenes, for some time now and I congratulate them on this move."
TGA issues 19 infringement notices over imports
Australia's Therapeutic Goods Administration said it "works closely with the Australian Border Force" to assess imported vaping products, with personal imports needing to be supported by a prescription.
"More than 738,000 nicotine vaping products have been determined to be non-compliant imports, and certificates have been issued to allow their seizure by the Australian Border Force," a TGA spokesperson said.
"Further imported nicotine vaping products are being held at the border for assessment and possible seizure.
"Seizure and loss of goods can represent a significant financial loss for the importer separately from any further enforcement action the TGA may take.
"In addition to seizure action, from 1 October 2021 to 2 May 2023, 19 infringement notices were issued to 11 entities totalling $125,208 for the unlawful import of nicotine vaping products."
Health won't reveal number of investigators
Police also have legal powers to investigate the sale of illegal vapes but it is understood the task has been mostly left to the Health Department.
The Health Department declined to reveal how many investigators it had dealing with illegal vapes.
"The Department of Health maintains a team of compliance and enforcement officers that conduct inspections and investigations under the Tobacco Products Control Act, and the Medicines and Poisons Act," a Health Department spokesperson told the ABC.
"These officers have specific regulatory training and act as authorised persons to exercise powers conferred by the legislation, they can enter premises, collect materials and records, seize unlawful goods, and direct persons, where offences are reasonably suspected and public health and wellbeing is at risk.
"The officers can conduct activities across the state. WA Police are also authorised under these acts and have similar powers.
"Other matters are operational in nature, not in the public domain and will not be released."
Teen and school vaping a major concern
Watching her 15-year-old daughter sink her precious after-school earnings into nicotine vapes has been heartbreaking for *Andrea, a single mother in regional Australia.
Andrea is one of many parents who are hugely relieved about this week's promise by the federal government to crack down on the black market sale of e-cigarettes to children.
The pledge has been a long time coming for parents on the frontline.
Andrea, who the ABC has chosen not to identify to protect her relationship with her daughter, believes parents and schools have been left to deal with the fallout from government inaction.
"It is quite outrageous actually how an illegal activity is so tolerated," Andrea said.
"Teenagers are historically not equipped to withstand temptation and if served vapes on a silver platter, as they are now, many of them won't say no.
"We need government intervention to stop import and take control."
Vaping health concerns
Andrea fears for her daughter's physical and mental health, as well as their relationship.
Since the vaping started, they have become more distant.
"I had known her as an honest, fun-loving, caring girl until then," she said.
"In order to facilitate her vaping, my daughter had to hide it from me.
"Lying about her activities when out with friends, spending her money she had earned working after school and when that money ran out, possibly stealing cash from family members.
"Items going missing from the house led to a loss of trust from me to her."
Andrea has found the only course of action is to try to keep the dialogue with her daughter open as she attempts to form a new bond, but she has felt helpless at times.
She said there was currently no clear pathway for families dealing with nicotine addiction from vaping.
"I choose to know and tolerate my child vaping rather than having her do it in secret," she said.
"It is a less-than-ideal situation.
"My main aim now is to let her know that I love her no matter what and I will give her a safe place to fall back on.
"I'm at a loss at what to do and just take it day by day, parenting to the best of my ability."
No enforcement of vaping fines
Andrea has been buoyed by this week's pledge by federal Health Minister Mark Butler to bring in plain packaging and a ban on flavours as part of a $234 million crackdown on vapes.
Despite nicotine vapes being illegal without a prescription since 2021, they are easily available both online and over the counter.
Andrea says she has seen little evidence of enforcement in her home town in Western Australia, saying there needs to be "actual fines" for dealers selling to children.
"It can't be that difficult to find out who is dealing in vapes, but I haven't heard of any police interventions taking place," she said.
"Currently the issue is not being taken seriously."
The issue of vapes is regulated jointly by federal and state governments.
Western Australia's health minister recently urged the Commonwealth to boost its border intervention to intercept the illegal vapes.
Public schools to trial vape detectors in toilets
Education Minister Tony Buti revealed this week that vape detection devices would be trialled at 10 public high schools in Perth and regional WA.
It comes as the Education Department grapples with widespread nicotine vaping among students.
The devices can sound an alarm or notify the school when they detect the chemical emitted from vaping or if they detect THC, a chemical found in cannabis.
The $2,000 sensors are designed to be able to distinguish between other aerosols, such as deodorant, and are advertised as being largely tamper-proof.
Six public schools in WA have already installed them in toilet blocks, but there have been reports of students damaging them to continue vaping.
Mr Buti said part of the trial would look at how to minimise damage and vandalism.
He also acknowledged more needed to be done to stop the sale of illegal vapes in WA, especially to minors.
"We need to try and stop the supply coming from overseas, but I believe there is more that could be done to reduce the ability of people to go to outlets to purchase vaping equipment," he said.
"At the moment vaping is only supposed to be allowed on the basis of a medical prescription for people who are trying to get off smoking.
"Many people are engaged in vaping who don't have a medical prescription."
There have been thousands of suspensions of students around the country for vaping-related behaviour, including 3,700 in Western Australia's public schools last year and 570 in the first five weeks of the first school term this year.
Andrea wants consequences but does not believe suspensions are working.
"I could imagine after-school community-service-like duties, cleaning school toilets, scraping gum off the tables, things that keep their hands and minds busy and give parents an opportunity to back up the school rules by making their child participate," she said.
"Maybe students caught vaping can be made to attend an after-school intervention session, where vaping is discussed and help offered."
Premier unaware how many fines issued for illegal vapes
Asked earlier this week about the enforcement of WA's vaping laws, Mr McGowan said he was not aware how many fines had been handed down for selling illegal nicotine vapes.
"We have laws that are in place, but we're going to work with the Commonwealth on enforcing the new rules they're bringing in to make sure vaping is something that's only conducted in accordance with medical advice," he said.
"What's occurred, in particular with young people, a lot of them have acquired vapes — sometimes they buy them online and sometimes they get them from a shop — obviously there needs to be greater enforcement.
"But in conjunction with the Commonwealth, we're going to do a lot more and schools are going to do a lot more to crack down on it."
Mr McGowan also had a message for retailers flouting the law.
"You're doing the wrong thing and we will be cracking down on this," he said.
"The minister for health, the minister for education, the minister for police and I, have had conversations about what needs to happen, and we'll work to put in place pretty strict rules.
"Vapes were originally meant to be something that allowed people who have a smoking addiction to get off cigarettes, but what's occurred, as often happens, is people have abused it, and we obviously have to change it and make it far tougher."
Call Quitline (13 7848) for free advice. Quitline counsellors can answer any questions you may have about e-cigarettes and can help you think of ways to approach the conversation.
If your teenager or young person wants help to quit vaping, they can have a confidential, live chat with a Quitline counsellor at quit.org.au.
